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Age discrimination #25
by Ross Runkel at LawMemo
The federal Age Discrimination in Employment Act (ADEA) prohibits discrimination "because of" "age." Most states have statutes that have similar language.
What does "age" mean under the ADEA? It includes individuals who are 40 years old or older. There is no upper limit. State statutes sometimes specify different ages, such as 18.
So, age discrimination is treating people in a different manner because they are 40 years old or older.
Examples:
- Mandatory retirement at age 65.
- Refusing to hire someone because the person is older.
- Reducing the number of employees by selecting only those over 60.
- Assigning older employees to one type of job and younger employees to another.
- Paying older employees less because they are older.
Age means chronological age, and employers are not prohibited from making distinctions based on how many years an employee has worked for the company, even though that may correlate with age.
Age differences. In order to make out a prima facie case of age discrimination there usually must be proof that there was a "substantially younger" person who got better treatment. For example, showing that a 60-year-old was fired and a 59-year-old wasn't would not be enough of an age difference. There is no "bright line" number of years for measuring what "substantially younger" means.
Favoring older workers. It is not a violation of the ADEA to favor older workers as against younger workers.
Harassment because of age is a form of age discrimination.
Disparate impact. In 2005 the US Supreme Court decided that the disparate impact theory can be used in age discrimination cases. However, these age cases are extremely difficult for employees to win for two reasons. First is that the 1991 legislation that makes things easier for plaintiffs in Title VII impact cases does not apply. Second is that the Age Discrimination in Employment Act specifically permits any "otherwise prohibited" action "where the differentiation is based on reasonable factors other than age." In the 2005 case a City gave police officers with less than five years service greater pay raises than more experienced officers. Obviously this had a negative impact on the 40-and-over group. The Court pointed out that the City based its decision on seniority, which was a "reasonable factor other than age." Therefore, the City won.
BFOQ. In rare cases an employer can defend a case of age discrimination on the ground that it is a "bona fide occupational qualification." A special section of the statute allows age distinctions to be made for the hiring and retirement ages of law enforcement and firefighter employees.
Waivers of rights. An employee can waive his or her rights or claims under the ADEA either in the settlement of an ADEA administrative or court claim or in connection with an exit incentive program. However, the ADEA, as amended by the Older Workers Benefit Protection Act (OWBPA), sets out minimum standards that must be met in order for a waiver to be valid. Among other requirements, a valid ADEA waiver must:
- be in writing and be understandable;
- specifically refer to ADEA rights or claims;
- not waive rights or claims that may arise in the future;
- be in exchange for valuable consideration;
- advise the individual in writing to consult an attorney before signing the waiver; and
- provide the individual at least 21 days to consider the agreement and at least seven days to revoke the agreement after signing it.
Over 22 percent of the charges filed with the EEOC involve claims of age discrimination.
Coming next: Disability discrimination #26: Employment Law 101
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
